Rx for Danger: Legal maneuver could help doctors in pill-mill cases

Doctors suspected of running pill mills in Florida are often charged under the state's broad prescription-drug-trafficking law, a first-degree felony that comes with a potential 25-year prison term.

But now, some defense attorneys are arguing that physicians should be charged under a rarely used Florida law written for practitioners accused of improper prescribing practices — a third-degree felony.

That means doctors accused of doling out excessive and inappropriate amounts of addictive drugs would face only five years in prison.

An attorney in Palm Beach County made the successful argument for his physician client last year, getting all of the oxycodone-trafficking charges dismissed in his case.

Recently, Orlando defense attorney Michael LaFay made a similar argument for his client, Winter Park doctor Michael Moyer, but an Orange County Circuit Court judge denied the motion Thursday.

Still, with the success in the South Florida case — a ruling the state is appealing — it is likely defense attorneys across Florida will continue to attempt to use the legal maneuver.

The issue, said Stetson University College of Law professor Roberta Flowers, is how prosecutors decide which charge fits the crime.

Flowers said that historically, judges have taken a hands-off approach and let prosecutors decide what charge best fits the case.

"The prosecutor knows who their witnesses are going to be … they know what are going to be some of the weaknesses in the case," she said. "The prosecutor has a much better picture of what he is going to be able to prove that the defendant does."

Prosecutors in the Ninth Judicial Circuit, which spans Orange and Osceola counties, haven't pursued a single case with the physician-specific statute in the past 10 years.

A State Attorney's Office spokesman said one case was originally filed with the charge, but that was later changed to the tougher drug-trafficking.

That could be because the offenses in the physician-specific statute often do not apply to today's pill-mill suspects.

The physician-specific law states practitioners cannot "employ a trick or scheme," and cannot write a prescription for a controlled substance for a fictitious person.

In today's prescription-drug epidemic, patients accused of doctor-shopping aren't being tricked into receiving prescriptions for drugs such as oxycodone, and they often use their real names.

Authorities began investigating Moyer, the Winter Park doctor, several years ago and said he gave an informant painkillers and muscle relaxers without a valid medical reason.

He was arrested in 2010 and faces charges of trafficking in hydrocodone, delivery of a controlled substance, and trafficking in oxycodone.

In response to LaFay's motion to dismiss, Assistant State Attorneys Joe Cocchiarella and Robert Welch argued the state has the discretion to prosecute either the more serious offense or the more lenient crime.

Circuit Court Judge Heather Pinder Rodriguez, who took the arguments under advisement for several weeks, ruled LaFay's argument was without merit, stating "charging decisions are within the purview of the State."

There are a number of reasons why prosecutors opt for one charge over another, especially in a case of a first-degree felony versus a less serious offense.

"As a prosecutor, we want the strongest deterrent value we can find," Flowers said. "A Class One Felony is a much bigger hammer than a Class Three Felony."

Flowers said prosecutors could also want to send a message — that they view doctors who illegally prescribe pills the same way they do street-corner cocaine dealers.

"When you are looking at the kind of epidemic we're looking at, prosecutors have to use the biggest hammer they can get," she said. "Sometimes you charge a more serious crime because you really do want to send a message to your community of violators."